The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Tuesday, 24 January 2012

Sir Nicolas Bratza: the European Court of Human Rights

Updated with links to some other blogs

To say the least, Sir Nicolas Bratza is a very eminent lawyer - see his profile on the Bar Council website. His CV is also on the European Court of Human Rights website. Sir Nicolas was in private practice at the English Bar for 29 years - from 1969 to 1998. He was appointed Queen's Counsel in 1988 and appointed Judge of the High Court in 1998. However, most of his judicial work has been as a British judge of the European Court of Human Rights and he is now the court's President.

As it happens, since 7th November 2011, the United Kingdom holds the Chairmanship of the Council of Europe's Committee of Ministers. It will hold this until 14th May 2012 when Andorra takes this rotating post. On Wednesday 25th January, David Cameron is to address the Council of Europe's Parliamentary Assembly which will be attended by representatives of all 47 Member States of the Council of Europe - quite a number of which are emerging democracies struggling to establish the rule of law. It is widely anticipated that Mr Cameron's address will include reform of the European Court of Human Rights which the U.K. is pressing for.

In advance of Cameron's address,Sir Nicolas has chosen to defend the European Court of Human Rights - see The Independent 24th January 2012 - "Britain should be defending European justice, not attacking it." His article is essential reading. It may prove to be a pity that Sir Nicolas did not keep his powder dry until Cameron had spoken. Nevertheless, Sir Nicolas offers a staunch defence of the court, of the role played by the UK in establishing the court and the convention and also of the overwhelmingly positive influence of the court on the development of the law within the UK.

One fact is worth our concentration. In 2011, the court decided more than 52000 cases. 955 of these involved the UK - that is, 1.8% of the total. In only 8 cases - (0.015% of the total or 0.84% of the 955) - did the court find the UK to be in violation of the Convention.

The problem is that the present British government, much like the last government, concentrates its firepower on those cases which it dislikes. Cases such as Hirst No.2 (Prisoner Voting - Grand Chamber judgment still not implemented by UK); S and Marper (DNA profile retention); and Abu Qatada (deportation - fair trial could not be secured if evidence against accused obtained by torture) received enormous Ministerial comment whereas cases where the UK secures "success" receive little Ministerial attention - e.g. Abu Qatada (where the court actually accepted that, in some instances, diplomatic assurances to prevent ill-treatment would be acceptable) or Vinter and others v UK (life can mean life in some cases of sufficient seriousness) - see Law and Lawyers 17th January. Then there was the Al-Khawaja judgment where the European Court of Human Rights conceded that a conviction based solely or decisively on the statement of an absent witness would not automatically result in a breach of Article 6(1). However, quite properly, the Court said that counterbalancing factors had to be in place, including strong procedural safeguards, to compensate for the difficulties caused to the defence - see Law and Lawyers 15th December 2011.

The present British coalition government is, in my view, using the economic crisis to attack legal aid which is the bedrock of access to justice for the ordinary citizen in our country. Elimination of financial waste in many areas of government would be enough to pay for necessary legal aid many times over. The Legal Aid, Sentencing and Punishment of Offenders Bill, currently before the House of Lords, is, so far as legal aid is concerned, an abomination. Neither the Commons nor the Lords have appeared to be able to secure many concessions on this Bill and criticism of the Bill - even criticism from eminent lawyers in the House of Lords - is being stonewalled by Ministers.

None of the above is to deny that some reform is required to the European Court of Human Rights - e.g. the case backlog must be reduced - a point addressed by Sir Nicolas in his article. Neither is a case being made against any reform of legal aid. For instance, in some areas, it is not unreasonable to expect litigation funding to come from sources other than legal aid. Nevertheless, the present government's aims at reducing the influence of the European Court of Human Rights and its attacks on legal aid do not auger well for the future of legal rights within the UK. Whatever Mr Cameron chooses to say, his words must be judged against his government's deeds. We now await his address with interest.

In the interests of overall balance, here are two blog posts of interest:

Mulberry Finch - Nicolas Bratza and the Margin of Appreciation - This post is particularly critical of Bratza's statement and argues that the court should be essentially about prevention of excessive use of government power. It concludes - "We equally see that a sovereign parliament must be able to make some laws that are not defeated in a court: it has to be accepted by the pro-Human Rights contingent that this is not an ever extendable set of rights, it is a hedge against unlawful interference by the government. Only when the merits of the few small cases (prisoner rights, terrorist deportations) are properly discussed will there be an effective resolution to this disagreement. Being pro or anti isn’t good enough; it’s more complicated than that."

Head of Legal - Bratza: criticism of Strasbourg not borne out by the facts - the author, barrister Carl Gardner, states - "I support the European Court of Human Rights, and am pleased to see Sir Nicolas defend its general record robustly. Most British criticism of the human rights court is wrong-headed and ill-informed. But on some specifics, I’m afraid the facts do bear out the complaint that the court has sometimes been too interventionist."

1 comment:

Human Rights is a constitutional right accorded every citizen of a country as entrenched in the laws of every country,so let it remain as it has been written down and applied by courts of competent jurisdiction.